The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1887-05-04

State that mortgage 1s not an alienation.
Warren vs. Raymn3s9d u En =; g. pHsb S, and sm bna
been often held, and properly held, that until
the mortgager Is out of possession mortgage
Is not complete alienation In the sense OF
property @ conveyed or "aliened" beyond the
reach of creditors OF the ancestor. But surely
1t cannot be necessary TO show that that case
has not the remotest analogy to this, nor any.
thing whatever to do with aquestion as to
what is embraced within the broad and gen.
eral term married woman, suppose. that
the power to ''alienate" would cover and en-
brace the lease OF the premises for month or
a year. but 1t would not be assuredly on the
ground that the lease was perfect aliena-
ton but because, in reference to power, the
greater includes the lesser. ltisimposslole 10
entertain the idea for moment that the
power to "alienate" gives tho right to exercise
no control OF the property, short ofa complete
and absolute alienation. It Is as certain as
anything can be that down to 1880, when the
case Of Pelzer Rodgers c. was i desiided ,'ad tne
both by the Legislature and the Courts, that
a married woman had the right not only TO
charge her separate estate by mortgage exc
general personal engagements, without any
reference to her separate estate. See Wolf vs..
Witte and other cases cited by the Chidf Jus.
tice.
Statutes through the Legislature, the Act OF
1870 above quoted, was amended by inserting
in the fourth line Of the third section, after
the words contracted with" the simple
section now reads: "a married woman shall
have the right to purchase any species ol
property In her own name, and to take proper
Legal otbep separate
property In the same manner as II she were
Unmarried" See Sec. 2,OS7, General Statutes.
And III is now contended that these hve
words inserted in the Act changed funda,
mentally the powers Of married woman, and
that she cannot now charge her separate es-
tate by giving mortgage OF II ior the oent o.
another. AS 1t seems to me, this Is grave
taken view that the powers OF q married
woman did not originate In the Constitution, but
were created by the express power TO contract
given in the Act ofthe Legislature, which was
amended as before stated. This View, as y
seems TO me, causing much more importance
to be attached to the short amendment than
II Is entitled to. suppose 1t is my fault, but
confess that am unable to understand the
process by which the conclusion about 10 be
announced is reached.
First. The little amendment does not pur
port to repeal anything all that IL claims tc
do Is to amend the Act OF 1870, 50 as to iimli
the power to contract, therein given in:gen-
eral terms, to the separate estate OF the mar
rled woman. Even that purpose was not IN
terms declared, but this Court has held In the
recent case of Habenicht vs. Rawls, that Inn
itlng the power OF contract to the separate es
tate, was q negation Of the power except ds "a
such estate that is TO say, It repealed by inpli
cation the power given by that ACT mot by
the Constitution) to make such general per,
must not be overlooked that there Is great
difference between such general power In
married woman and her contracts with ex'
press reference to and charged upon her sepa'
Second ButI deny most positively that
the little amendment, potential as IL ls
claimed 10 be, had any effect whatever upon
the powers which were given 6y the Constttss
ton and involved in the great power to fallen
ate" generally, as We have hereinbefore en-
deavored to show. The amendment OF the
Act OF 1870 was nothing more than an Act o.
could not repeal any right given by the
Constitution. lit had attempted to do 80 the
| effort W ould have been futile and vain, and.l
Of Of 1870, including the declaration in It that Q
married woman could charge her separate ca,
tate with a mortgage, most surely that woul6
not have affected the Constitution Itself. AL
thu rights and powers given by the Constit9
ment had never been made.
Third. have not the least Idea, however
that the Legislature, in making the amend
now about to be given to 1t. The Act. after
the amendment was Incorporated, reads az
| follows "a married woman shall have
power to bequeath, devise or convey her sePa'
rate property in the same manner and to the
same extent as ifshe were unmarried, =
and all deeds, mortgages and legal 1nstru
ments, OF whatever kind, shall be executed by
her in the same manner and have the same
legal force and effect as II she were unmarried
A married woman shall have the
right to purchase any species Of property In
her own name. and to take proper legal con
veyances therefor, and to contract and be
con trcted with as to her separate estate IN the
same manner as II she were unmarried" 90;
Would 1t not be most extraordinary II the
words In the third section, 'as to her separate
estate" should be held TO destroy most OF the
other provisions in the same Act? 1t Is one
Of the rules Of construction that we must as
sumo that every part OF the Act wa tsntended
to have some meaning. 1t is judicious nap
1t OF Courts 10 seek for some construction by
which every part Of the statute may be given
Its proper effect. In my judgment such con
struction Is at hand here. A construction
which harmonizes all parts OF the ACT 10 mol
Inconsistent with the CONSTITUTIONS IN e1,
act accordance with the words used, and, as
believe, also with the Intention OF the law
makers. The words " as TO her separate es
late" were mvnifestly inserted for the purpose
Of making an exception to O proposed limita
Iion upon the power to contract. and therefore
they do not intimate any change OF The law tc
the extent Of the exception; that Is to say
as TO her separate estuS; as 10 that tne law
stands entirely untouched by the amendment
lion that the trainers OF the amendment In
tended to leave entirely unaffected the powers
of married woman as TO her separate estate
but to take from her the power TO MAKE
personal and general contracts, without any
reference to her separate estate, such as notes
bonds, endorsements. guarantees, &C., whIc6
latter power being given by the Act OF 1870
was repealable?
Keeping in view that the object was to re
peal 90 much OF the Act Of 1870 as gave tht
power to contract generally. and not to limll
(which the Legislature could not) any power
TO contract arising out Of the Constitution, the
| words used were appropriate, aud are lnteiil.
gible. What Is the ordinary phase, "as TO-
| Is there any one living who, upon being
asked the question, would not on the instan.
reference to." to.""concerning,""about"s As'
,ter and Worcester) declare the definition tc
be "wlth respect to-" That being the cause
what warrent Is there for making the phrase
"as to- mean ain consideration or" or "fol
the benefit or?
n such be the proper construction, the pro
vision is clearly unconstitutional, as unoet
taking to meddle with matter already fixed
by that instrument But 1t Is manifest, as II
seems 10 me. that such IL not the proper
meaning of the phrase. To describe the
property specifically and declare the purpose
answers fully the definition with respect TO-
II O married woman should convey her estate
for any purpose whatever, would that not be
sin respect TO it?" II she should give IT away.
would that not be with reference" to It.?
And If she should charge 1t. describing l,
clearly, by mortgage or otherwise, who can
say that that wonld not be ain reference to-
that part Of her separate estatef confess
cannot see the necessity OF stralnlng a
meaning INTO the phrase which the words uo
not require, and especially as such construc.
tion makes on Act Of the Legislature In effect
repeal q provision OF the Constitution.
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